Citation Nr: 9934558
Decision Date: 12/10/99 Archive Date: 02/08/00
DOCKET NO. 98-06 724 DATE DEC 10, 1999
On appeal from the Department of Veterans Affairs Regional Office
in Montgomery, Alabama
THE ISSUES
1. Entitlement to an evaluation greater than 20 percent for a low
back disorder.
2. Entitlement to service connection for a hearing loss disability.
3. Entitlement to service connection for a tinnitus disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
C. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1982 to March
1990.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from a rating decision rendered by the Montgomery, Alabama,
Regional Office (RO) of the Department of Veterans Affairs (VA),
dated August 1997, where the issues identified on the first page of
this decision were denied.
As a preliminary matter, we note that the veteran's representative
has aptly argued, in the informal hearing presentation submitted on
the veteran's behalf, that the veteran has submitted evidence
directly to the Board without waiving regional office
consideration. However, we also note that the veteran submitted
evidence on two such occasions. First, he submitted a statement
from his private physician, reflecting a fax date of October 1998.
There was no waiver associated with this submission. Next, in March
1999, he submitted a VA Form 21-4138, on which the veteran
indicated that he "would like to request a waiver of jurisdiction
of the Montgomery VA Regional Office. I would like for my claim to
be processed through the Board of Veterans Appeals there in
Washington." Included with this statement was a second copy of the
October 1998 statement from his private physician, and additional
medical evidence dated April 1999. As we determine that the
veteran's language indicates that he waived regional office
consideration of the evidence submitted to the Board, and as he
again submitted the October 1998 statement with this waiver, we
find that a remand to the regional office is not necessary in this
case.
We also note that the veteran was scheduled to appear before a
Member of the Board sitting in Washington, D.C. for his central
office hearing in October 1999, but that he subsequently canceled
that hearing.
Finally, we note that the veteran had raised a claim for tinnitus
in his March 1997 VA Form 21-4138, that has not been adjudicated
for our review. However, it appears from our review of the claims
folder that the veteran indicated his
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disagreement with the August 1997 rating decision denying that
claim in his May 1998 VA Form 9. Thus, as a Notice of Disagreement
has been submitted with respect to this issue, we note that it must
be remanded to the RO for issuance of an SOC. Holland v. Gober, 10
Vet. App 433, 436 (1991) (per curiam order) (vacating BVA decision
and remanding matter when VA failed to issue SOC after claimant
submitted timely NOD); see also Fenderson v. West, 12 Vet. App. 119
(1999) (following Holland). See, in this regard, Manlincon v. West,
12 Vet. App. 238, 240- 241 (1999), where the United States Court of
Appeals for Veterans Claims (Court) said, in essence, that the
appellant's NOD had initiated review by the Board of the RO's
denial of the appealed claim and that, since an SOC had not been
issued, the issue "should have been remanded ... to the RO, not
referred ..., for issuance of that SOC." 1 Thus, that issue will be
addressed in the remand section of the opinion.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's claim concerning his low back disability has been
developed.
2. A low back disability is manifested primarily by slight
limitation of motion and mild pain, with resulting moderate
functional impairment.
3. A hearing loss disability manifested subsequent to service is
not shown to be related to that service.
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1 We note that the issuance of an SOC was not deemed to be
necessary in Archbold v. Brown, 9 Vet.App. 124 (1996); however we
find that the facts of that case are inapposite to those presented
here. In Archbold, the Court determined that a statement by the
veteran that contained all the necessary information as outlined by
38 C.F.R. 20.202, which was submitted directly to the Board at a
hearing by the Board, was deemed to be a sufficient substantive
appeal even without an SOC, where the Board accepted such a
statement but did not notify the veteran about any adequacy
concerns as it was obligated to do. As similar facts are not
presented here, we find that due process considerations mandate
that the appellant have the opportunity to appeal this issue after
promulgation of an SOC.
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CONCLUSIONS OF LAW
1. The criteria for an evaluation greater than 20 percent for a low
back disability are not met. 38 U.S.C. 1155 (West 1991 & Supp.
1999); 38 C.F.R. Part 4, 4.71a Diagnostic Codes 5285, 5286, 5289,
5292, 5293, 5294, and 5295 (1999).
2. A claim for entitlement to service connection for a hearing loss
disability is not well grounded. 38 U.S.C. 5107(a) (West 1991 &
Supp. 1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to an evaluation greater than 20 percent for a low
back disorder.
Initially, the Board finds that the veteran's claim is well
grounded within the meaning of 38 U.S.C. 5107(a) (West 1991 & Supp.
1999); that is, he has presented a claim that is plausible. See
Proscelle v. Derwinski, 2 Vet. App. 629 (1992). He has not alleged
that any records of probative value that may be obtained, and which
have not already been sought by VA, or are not already associated
with his claims folder, are available. The Board accordingly finds
that the duty to assist him with regard to this claim, as mandated
by 38 U.S.C. 5107(a) (West 1991 & Supp. 1999), has been satisfied.
Service connection for a low back disability was established in a
June 1996 rating decision, after a review of the evidence then of
record. Specifically, the RO noted that the veteran's service
medical records (SMRs) indicated a history of leg pain radiating
from his back during service, and assigned a 20 percent evaluation.
A temporary total rating for convalescence was in effect for the
period. from March to July 1998. The 20 percent rating has since
remained in effect to date.
As indicated above, the veteran contends that the rating currently
in effect does not adequately reflect the severity of his low back
disability. After a review of the
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record, the Board finds that the evidence does not support his
contentions and that an increased evaluation for his back
disability is not warranted.
The severity of a low back disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA's Schedule
for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule). These
criteria are based on the average impairment of earning capacity,
38 U.S.C. 1155 (West 1991 & Supp. 1999), and utilize separate
diagnostic codes to identify the various disabilities. 38 C.F.R.
Part 4, 4.130 (1999). Disabilities of the spine are evaluated under
rating criteria that contemplate residuals of vertebra fracture
(Diagnostic Code 5285), complete bony fixation of the spine
(Diagnostic Code 5286), ankylosis of the spine, (Diagnostic Code
5289 (lumbar)), limitation of motion of the spine, (Diagnostic Code
5292 (lumbar)), intervertebral disc syndrome (Diagnostic Code
5293), sacro-iliac injury and weakness (Diagnostic Code 5294), and
lumbosacral strain (Diagnostic Code 5295).
The veteran's current 20 percent rating contemplates a disability
productive of moderate intervertebral disc syndrome under
Diagnostic Code 5293. A 40 percent rating is contemplated for
severe intervertebral disc syndrome, where recurring attacks are
present with little intermittent relief. Pronounced intervertebral
disc syndrome, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological findings appropriate to
site of diseased disc, with little intermittent relief, is
evaluated as 60 percent disabling.
A 100 or 60 percent evaluation is assignable where residuals of
vertebra fracture are present under Diagnostic Code 5285, or where
there is complete bony fixation of the spine, under Diagnostic Code
5286. Additionally, ankylosis of the lumbar spine is evaluated
under Diagnostic Code 5289. Unfavorable ankylosis contemplates a 50
percent evaluation, while favorable ankylosis contemplates a 40
percent evaluation. Additionally, severe limitation of motion of
the lumbar spine is contemplated by Diagnostic Code 5292, and is
evaluated as 40 percent disabling. Severe sacroiliac
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injury and weakness, under Diagnostic Code 5294; or severe
lumbosacral strain, under Diagnostic Code 5295, contemplates a 40
percent evaluation.
Additionally, ratings under Diagnostic Code 5010 and Diagnostic
Code 5003 may also apply where traumatic arthritis or degenerative
arthritis is present. Those criteria stipulate that arthritis will
be evaluated under the limitation of motion criteria for the
specific joints involved; where limitation of motion is
noncompensable, a 10 percent rating is to be combined for
application of each major joint group or group of minor joints. In
the absence of limitation of motion, a 20 percent rating will be
assigned where there is x-ray evidence of involvement of 2 or more
major or minor joint groups, with occasional incapacitating,
exacerbations, and a 10 percent evaluation assigned when there is
no occasional incapacitating exacerbations.
In De Luca v. Brown, the Court held that when the veteran has
testified under oath to increasing pain oil use, and where there
was medical evidence substantiating these 'flare-ups', that when
musculoskeletal system disabilities are evaluated, pain on use and
factors under 38 C.F.R. 4.40 and 4.45 are to be considered along
with the criteria set forth in the diagnostic codes to determine
the level of functional impairment. 8 Vet. App. 202, 206 (1995).
The results of the veteran's February 1997 VA medical examination
(VAME) show that he was diagnosed with low back pain with MRI
evidence of a herniated nucleus pulposus at the L4-5 and L5-S1
interspaces and neural foraminal stenosis at S1 (first sacral
vertebra) with some impingement of the S1 nerve root on the left.
His range of motion was depicted as follows: forward flexion
limited to 70 degrees, backward extension to 19 degrees, left
lateral flexion to 26 degrees, right lateral flexion to 29 degrees,
rotation to the left to 32 degrees, and rotation to the right to 31
degrees. The examiner noted that there were no postural
abnormalities, no fixed deformity, and that the musculature of the
back was within normal limits. The examiner specifically found that
there was no objective evidence of pain on motion, but noted that
the veteran complained of slight pain on flexion and extension. The
examiner further noted that the straight leg raising caused pain in
the left posterior
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the thigh at 32 degrees, and that there was also decreased pain
sensation in the lateral aspect of the left lower extremity in the
left foot. The reflex on the right were "2+", and Achilles reflexes
on the left was "1+".
A private medical record, dated February 1998, notes that the
veteran was scheduled to have low back surgery, and that he would
be out of work for three to four months. He was diagnosed with
lumbar stenosis, L4-5 and L5-S 1, left, with radiculitis. Hospital
records dated March 1998 show that he underwent a laminectomy. We
note in this regard that the veteran established a temporary total
rating for convalescence for the period from March to July 1998.
Progress notes dated April, June and July 1998 show that the
veteran's straight leg raising examinations were negative, and that
his MRI studies showed no significant abnormalities. The veteran
also complained of burning in his left leg. A discharge summary
dated August 1998 shows that the veteran was diagnosed with post
laminectomy back pain. The report shows that the veteran had a
"post myelogram CAT scan" and that "This was normal in the low
back". His private physician also stated that "At the present time,
it looks like everything has been do[ne] with his back that needs
to be done, and I do not see that we need to do anything further."
A letter dated October 1998 is also of record. That letter states
that the veteran is expected to have repeated episodes of his
condition in the future. The prognosis for a cure with complete
resolution of symptoms is poor. "He will have recurrence of
symptoms with stresses such as heavy lifting or strenuous activity.
Between attacks he can lift between 25 and 30 pounds. During
attacks, he is able to lift less. He is able to ambulate normally.
During attacks he is unable to bend forward, stoop or lift objects
in a repetitive motion fashion." The medical evidence also shows
that the veteran was seen in March 1999 with complaints of low back
pain.
The evidence does not show residuals of vertebra fracture, complete
bony fixation of the spine, ankylosis of the spine, severe
limitation of motion of the spine; pronounced or severe
intervertebral disc syndrome, severe sacroiliac injury or weakness,
or severe lumbosacral strain, as contemplated by Diagnostic Codes
5285,
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5286, 5289, 5292, 5293, 5294 or 5295, respectively, so as to
contemplate a rating greater than 20 percent under those criteria.
Thus, a rating greater than the 20 percent is not warranted.
We note that at no point in time does the medical evidence show
that the veteran's disability was productive of a severe
intervertebral disc syndrome, with little intermittent relief.
Similarly, the evidence does not show that pronounced
intervertebral disc syndrome, with persistent symptoms compatible
with sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological findings
appropriate to site of diseased disc, with little intermittent
relief was manifested.
Specifically, the evidence shows that prior to his laminectomy, the
veteran's range of motion was depicted as follows: forward flexion
limited to 70 degrees, backward extension to 19 degrees, left
lateral flexion to 26 degrees, right lateral flexion to 29 degrees,
rotation to the left to 32 degrees, and rotation to the right to 31
degrees. Further, although the examiner did not find objective
evidence of pain on motion, it was noted that the veteran
complained of slight pain on motion. In addition, we note that the
letter from his private physician stated that although the veteran
would have recurrence of symptoms with stresses such as heavy
lifting or strenuous activity, that he was still able to lift less
something less than his 'normal' 25 and 30 pounds during these
attacks. Additionally, he is reportedly able to ambulate normally.
We also point out that although he is unable to bend forward, stoop
or lift objects in a repetitive motion fashion during attacks, the
medical evidence does not show that he has marked limitation of
forward bending in a standing position, abnormal mobility on forced
motion, demonstrable muscle spasm, or absent ankle jerk. In fact,
it specifically shows that he is able to ambulate normally, and
that the examiner at his 1997 VA examination noted that there were
no postural abnormalities, no fixed deformity, and that the
musculature of the back was within normal limits.
Thus, after considering the veteran's functional impairment during
these attack periods, the Board concludes that his current 20
percent evaluation for a low back
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Thus, after considering the veteran's functional impairment during
these attack periods, the Board concludes that his current 20
percent evaluation for a low back disability productive of moderate
functional impairment is appropriate, and that a greater rating is
not warranted. We note in this respect that the veteran also
manifests a cervical spine disorder, however, at this point, he is
only, service-connected for his low back disability.
We also note that the recent evidence of record shows that his
"post myelogram CAT scan" was normal in the low back. His private
physician also stated that "At the present time, it looks like
everything has been do[ne] with his back that needs to be done, and
I do not see that we need to do anything further." Although the
March 1999 treatment records notes arthritis of the veteran's back,
no evidence has been presented to show that an evaluation greater
than 20 percent is warranted.
Thus, as the medical evidence does not show that an evaluation
greater than 20 percent is warranted for any period of time, either
pre- or post laminectomy, we find that the veteran's claim must be
denied, and that the rule of Fenderson v. West is not implicated in
this case.
II. Entitlement to service connection for a hearing loss disorder.
In making a claim for service connection, the veteran has the
burden of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well grounded. 38
U.S.C. 5107(a) (West 1991 & Supp. 1999). A well grounded claim is
"a plausible claim, one which is meritorious on its own or capable
of substantiation." See Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990).
Establishing a well-grounded claim for service connection for a
particular disability requires more than an allegation that the
particular disability had its onset in service. It requires
evidence relevant to the requirements for service connection and of
sufficient weight to make the claim plausible and capable of
substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610
(1992); Murphy v. Derwinski, 1 Vet.App.
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78, 81 (1990). The kind of evidence needed to make a claim well
grounded depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some factual
issues, competent lay evidence may be sufficient. However, where
the claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93. Evidentiary assertions by the veteran must be
accepted as true for the purposes of determining whether a claim is
well grounded, except where the evidentiary assertion is inherently
incredible or is beyond the competence of the person making the
assertion. See King v. Brown, 5 Vet.App. 19 (1993)
The three elements of a "well grounded" claim for direct service
connection are: (1) evidence of a current disability as provided by
a medical diagnosis; (2) evidence of incurrence or aggravation of
a disease or injury in service as provided by either lay or medical
evidence, as the situation dictates; and, (3) a nexus, or link,
between the in-service disease or injury and the current disability
as provided by competent medical evidence. See Caluza v. Brown, 7
Vet.App. 498 (1995); see also 38 U.S.C. 1110 (West 1991 & Supp.
1999); 38 C.F.R. 3.303 (1998); Layno v. Brown, 6 Vet.App. 465, 470
(1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).
For claims concerning service connection for hearing loss or
impairment, VA has specifically defined what is meant by a
"disability" for the purposes of service connection: "[i]mpaired
hearing will be considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, 4000
Hertz is 40 decibels or greater; or when the auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000, or
4000 Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent." 38
C.F.R. 3.385 (1998).
With regard to whether the requirements for service connection for
hearing loss as defined in 38 C.F.R. 3.385 must be shown by the
results of audiometric testing during a veteran's period of active
military service in order for service connection to be granted, the
Court has held that 38 C.F.R. 3.385 did not prevent a veteran from
establishing service connection on the basis of post-service
evidence of
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hearing loss that was related to service, when there were no
audiometric scores reported at separation from service. Ledford v.
Derwinski, 3 Vet.App. 87, 89 (1992). The Court his also held that
the regulation did not necessarily preclude service connection far
a hearing loss that first met the regulation's requirements after
service. Hensley v. Brown, 5 Vet.App. 155, 159 (1993).
Although Hensley holds that 38 C.F.R. 3.385 does not preclude a
finding of service connection for a hearing loss disability where
the hearing impairment first rises to the level of a disability
subsequent to service, it also finds that nexus evidence is
required between the post-service hearing loss disability and an
in-service disease or injury. Hensley v. Brown, 5 Vet.App. 155, 160
(11993) (where audiometric scores are present at separation, but a
hearing loss disability manifests subsequent to service, 38 C.F.R.
3.385 does not preclude a finding of service connection where nexus
evidence is present).
The veteran claims, in essence, that he currently manifests a
bilateral hearing loss disability, and that service connection is
warranted. He specifically stated that he was exposed to gunfire
during his active service, and that he currently has a hearing loss
disability that is related to that active service. For the reasons
and bases that follow, we find that lie has not presented a well
grounded claim.
The veteran's service medical records show he was given numerous
audiological examinations, and that those reports show that his
puretone thresholds at indicated frequencies of 500, 1000, 2000,
3000 and 4000 Hertz are as follows:
9/82 500 1000 2000 3000 4000
R 10 10 5 15 15
L 5 5 5 15 15
1/83 500 1000 2000 3000 4000
R 15 10 10 15 15
L 20 5 0 10 20
3/86 500 1000 2000 3000 4000
R 10 15 5 25 10
L 0 5 5 10 25
10/89 500 1000 2000 3000 4000
R 15 10 0 15 0
L 5 5 0 10 10
2/90 500 1000 2000 3000 4000
R 10 10 0 20 0
L 5 5 10 5 25
The results of the veteran's current VA audiological examination,
dated July 1997, show that the following percent discrimination
scores and puretone thresholds at indicated frequencies of 500,
1000, 2000, 3000 and 4000 Hertz were as follows:
7/97 %Discrimination 500 1000 2000 3000 4000
R 84% 20 15 15 25 25
L 88% 20 20 20 30 35
We note that the veteran contends that he currently manifests a
hearing loss disability that is the product of his active service.
However, we must point out that the medical evidence does not show
that such a relationship exists.
Specifically, his separation report, dated February 1990, does not
show that he manifested a hearing loss disability, as defined by VA
law and regulation, during his active service. Additionally, we
note that the evidence similarly does not establish a nexus between
this active service and his current disability.
The veteran is certainly competent to state what his symptoms are.
However, it has not been indicated that he possesses the requisite
medical knowledge to be competent to address a matter involving
medical principles or medical diagnosis.
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See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (layperson is
generally not competent to render an opinion on a matter requiring
medical knowledge, such as diagnosis or causation).
Thus, although the veteran may have a current hearing loss
disability, as reflected by his speech recognition scores of lower
than 94 percent using the Maryland CNC word list, his SMRs do not
show that he manifested such a disability, during service.
Additionally, we must point out that the current medical evidence
does not show a nexus between service and his current disability.
As indicated above, in the absence of such nexus evidence, the
veteran's claim is not well grounded, and must be denied.
We note that the Court has held that when a claimant fails to
submit a well-grounded claim under 38 U.S.C. 5107(a) (West 1991 &
Supp. 1999), VA has a duty under 38 U.S.C, 5103(a) (West 1991 &
Supp. 1999) to advise the claimant of the evidence required to
complete his application, in circumstances in which the claimant
has referenced other known and existing evidence. Robinette v.
Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App.
341 (1996). In the case at hand, the Board fields that this duty is
not triggered. In particular, although the veteran has indicated
that he has been treated for a hearing loss disorder subsequent to
his separation from service, we note that he has not indicated that
any nexus evidence exists. The veteran has therefore not referenced
other known and existing evidence that would complete his
application. In addition, in this case, the statement of the case
advised the veteran that he has a burden to submit a well- grounded
claim.
(CONTINUED ON NEXT PAGE)
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ORDER
Entitlement to an evaluation greater than 20 percent for a low back
disorder is denied.
Entitlement to service connection for a hearing loss disorder is
denied.
REMAND
As indicated above, we note that the veteran has submitted an NOD
with respect to the issue of whether he currently manifests a
tinnitus disability that is the product of his active service. Am
NOD is defined by regulation as "[a] written communication from a
claimant or his or her representative expressing dissatisfaction or
disagreement with an adjudicative determination by the [RO] and a
desire to contest the result"; it "must be in terms which can be
reasonably construed as [expressing] disagreement with that
determination and a desire for appellate review". 38 C.F.R. 20.201;
see also Buckley v. West, 12 Vet. App. 76, 82, (1998); Beyrle v.
Brown, 9 Vet. App. 24, 27 (1996); Hamilton v. Brown, 4 Vet. App.
528, 531 ('1993) (en banc), affd, 39 F.3d 1574, 1584-85 (Fed. Cir.
1994).
Thus, as the next step was for the RO to issue an SOC on the denial
of the tinnitus claim, we must now remand that issue to the RO, for
the issuance of that SOC. Manlincon v. West, 12 Vet. App. 238, 240-
241 (1999).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
Accordingly, this case is REMANDED for the following:
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1. The RO shall issue a Statement of the Case with regard to the
issue of service connection for tinnitus, including all pertinent
laws and regulations with respect thereto.
2. The RO should inform the appellant, and his representative, in
writing, that he must file a VA Form 9 or Substantive Appeal, in
this case, within "sixty days from the date the [SOC] is mailed".
38 U.S.C. 7105(ii)(3).
3. As the Court made clear in Stegall v. West, 11 Vet, App. 268
(1998), the Board is not to evaluate a claim when the directives in
the Remand were not followed. The Court held that the veteran has
a right to compliance of the remand orders as a matter of law, and
that when the remand orders are not complied with, the Board errs
when it fails to ensure that compliance. The RO should therefore
ensure that all requested action is accomplished.
4. The case should then be returned to the Board for further
review, as appropriate.
The Board expresses its gratitude in advance to the RO for its
assistance in completing the above development, and we trust that
it will attend to this development in an expeditious manner.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
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